The Case Against Ken Ivory That Wasn’t, and Isn’t

The benignly-named “Campaign for Accountability” has made a few waves this week for filing complaints against Representative Ken Ivory for “engaging in an illegal scheme to defraud local government officials out of taxpayer funds.”

Now that’s quite a lede.

It hinges, however, on this: the organization “alleges Rep. Ivory has solicited funds from local officials, falsely claiming the federal government can be forced to transfer public lands to the states.”

Clearly, Ivory’s organization is largely funded by taxpayers, with county governments paying large sums of money to support an effort their elected leaders wish to see succeed. This is not in dispute. So this issue really hinges only on the final part, namely, Ivory’s purportedly “false claims” that his effort to transfer public lands to state control is realistically possible.

Yawn.

For their support, the complainants cite “near universal consensus” which is really a few attorneys employed by the state government, in the Utah Office of Legislative Research and General Counsel, who contend that Ivory’s hallmark legislation has “a high probability of being declared unconstitutional.”

Why did I yawn? Because anybody familiar with the Utah legislature knows that these constitutional commentaries on legislation are dished out like Diet Coke in a Utah County restaurant. One lawyer’s opinion claiming that a court may consider a bill unconstitutional does not mean it is—it merely means it’s one attorney’s opinion, and that there’s precedent in the federal courts justifying one expansion of congressional power after another. In short, it doesn’t mean much—and it’s certainly not authoritative or “universal” as the complaint contends.

Because of their legal worthlessness—and the degree to which they are used as political weapons by those who disagree with the policy—Representative Ivory attempted (unsuccessfully) to amend the process by which they are issued, compelling the legislature’s attorneys to cite case law and legal arguments in favor of—and not simply against—the proposed legislation.

When Representative Brian Greene ran a bill to protect the rights of Utah gun owners two years ago, it was assigned a similar constitutional note. As the legislature’s attorneys explained why they felt the bill would be held unconstitutional, they completely omitted the very portion of the Supremacy Clause that suggests otherwise, and implicates the legal strength of their argument.

There may be legitimate concerns with Representative Ivory using taxpayer dollars for his political quest—an issue that can be discussed and debated by reasonable minds. But the complaint by this new, D.C.-based organization is patently absurd and legally weak; legislative attorneys are not the arbiters of what is and is not constitutional.